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it>2D  CONGRESS 
3d  Session 


\  DOCUMENT 
I    No.  897 


NEW  DANGERS 
TO  MAJORITY  RULE 


ADDRESS 


BY 


JUDSON  KING 

BEFORE  THE  POLITICAL  SCIENCE  CLUB  OF 

THE  UNIVERSITY  OF  WASHINGTON 

MARCH  6,  1912 


PRESENTED  BY  MR.  CHAMBERLAIN 

AUGUST  5,    1912.— Ordered  to  be  printed 


WASHINGTON 
1912 


NEW  DANGERS  TO  MAJORITY  RULE. 

A  COMPARISON  OF  THE  "CHECKS  AND  BALANCES "  OF  THE  CON- 
STITUTION WITH  THE  "SAFEGUARDS  AND  RESTRICTIONS "  PRO- 
POSED FOR  THE  INITIATIVE  AND  REFERENDUM. 


Among  the  arguments  advanced  against  the  adoption  of  the  initia- 
tive, referendum,  and  recall  there  is  one  which  must  strike  the  average 
American  citizen  with  astonishment.  We  are  warned  that  if  the 
people  secure  these  powers,  especially  the  constitutional  initiative 
and  judicial  recall,  the  rule  of  the  majority  will  be  established,  and, 
perforce,  what  will  become  of  the  helpless,  unprotected  minority  ? 

President  Taft,  in  his  famous  Arizona  veto,  used  this  language: 

Hence  arises  the  necessity  for  a  constitution  by  which  the  will  of  the  majority 
shall  be  permitted  to  guide  the  course  of  government  only  under  controlling  checks 
that  experience  has  shown  to  be  necessary  to  secure  for  the  minority  its  share  of  the 
benefit  to  the  whole  people  that  a  popular  government  is  established  to  bestow. 

United  States  Senator  Henry  Cabot  Lodge  admires  the  Constitu- 
tion of  the  United  States  because  it  protects  "the  rights  of  the  indi- 
vidual man  and  of  the  minority  against  the  possible  tyranny  of  the 
majority,"  and  then  quotes,  with  great  approval  this  statement  of 
Lord  Acton: 

Whilst  England  was  admired  for  the  safeguards  which,  in  the  course  of  centuries 
it  had  fortified  liberty  against  the  power  of  the  Crown,  America  appeared  still  more 
worthy  of  admiration  for  the  safeguards  which  *  *  *  it  had  set  up  against  the 
sovereign  power  of  its  own  people. 

President  Nicholas  Murray  Butler,  of  Columbia  University,  New 
York  City,  in  a  recent  address  before  the  Commercial  Club  of  St. 
Louis,  denouncing  direct  legislation,  said: 

We  point  to  the  fundamental  guaranties  of  the  British  and  American  Constitutions 
and  say  that  these  are  beyond  the  legitimate  reach  of  any  majority.  *  *  * 

This  is  not  the  kind  of  popular  government  which  the  American 
people  have  believed  they  possessed.  From  the  beginning  it  has 
been  one  of  their  most  cherished  political  traditions  that,  whatever 
limitations  the  Governments  of  other  lands  placed  upon  their  people, 
in  the  United  States  a  majority  of  the  people  ruled.  The  Constitu- 
tion was  not  above  them.  "We,  the  people,  establish"-  -  ran  the 
preamble,  and .  Americans  believed  it.  In  school  and  college  text- 
books, from  the  press,  platform,  and  pulpit,  from  the  cradle  to  the 
frave  they  have  been  taught  that  our  constitutions,  national  and 
tate,  were  expressly  designed  to  protect  them  in  the  right  of  the 
majority  to  alter  the  Government,  or  abolish  it,  and  establish  any 
other  they  saw  fit. 

So  great  has  been  the  reverence  of  our  people  for  this  form  of  gov- 
ernment, so  deep-seated  their  belief  that  it  was  the  best  the  wit  of 
man  could  devise,  that  until  recently  they  have  turned  a  deaf  ear  to 
any  proposal  to  modify  it. 

3 


DANGERS  ^ TO    MAJORITY    RULE. 

When  corruption  atfose'andlegislative  bodies  betrayed  their  trusts, 
the  people  did  not  lay  the  blame  upon  the  system  itself.  They  sought 
by  constitutional  limitations  to  restrict  the  powers  of  legislatures. 
They  formed  new  parties  and  endeavored,  by  the  election  of  honest 
men,  to  gain  control  of  their  Government.  In  recent  years  they  have 
tried  in  a  thousand  ways  to  eliminate  the  political  boss,  the  briber,  and 
the  lobbyist .  But  in  spite  of  their  efforts  they  have  seen  this  Govern- 
ment, State  and  National,  steadily  pass  under  the  control  of  the  great 
financial  and  commercial  interests,  and  the  American  people  now  know 
that  they  are  not  the  masters  of  their  own  Government,  but  are 
actually  ruled  by  a  very  small  minority  indeed. 

Taught  by  failure  the  weaknesses  of  the  uncontrolled  repre- 
sentative system,  the  people  are  "now  preparing  to  insure  majority 
rule  by  direct  exercise  of  the  law-making  power  whenever  they 
see  fit  to  exercise  it.  If  the  legislature  fails  to  prepare  and  sub- 
mit amendments  to  the  Constitution  desired,  or  enact  the  laws 
demanded,  the  people  will  propose  such  amendments  or  laws  by 
initiative  petition  and  enact  them  at  the  polls.  If  the  legislature 
enacts  laws  not  desired  by  the  people,  they  can  be  suspended  by 
referendum  petitions  from  taking  effect,  and  a  vote  taken  upon  them 
at  the  following  general  election.  If  a  public  official  becomes  corrupt 
or  incompetent,  a  recall  petition  can  be  circulated,  an  election  held, 
and  he  be  immediately  discharged  and  another  man  elected  to  fill 
his  place. 

Already  several  States  and  a  large  number  of  cities  have  secured 
these  powers.  Their  direct  object  is  to  establish  the  rule  of  the 
majority.  It  is  the  only  method  by  which  that  rule  can  be  established. 
The  interests  can  always  reach  a  small  delegate  body,  but  they  can 
not  control  the  whole  people. 

And  now,  when  this  movement  toward  genuine  popular  govern- 
ment seems  likely  to  sweep  the  country  and  be  established  in  every 
State  within  a  few  years,  we  are  flatly  told  by  the  President  of  the 
United  States,  famous  as  a  jurist,  and  by  high  constitutional  author- 
ities that  the  people  have  no  right  to  such  powers  and  that  the  Con- 
stitution of  the  United  States  is  expressly  designed  to  prevent  the 
majority  from  ruling  the  minority  in  certain  particulars,  which  they 
fail  to  specify. 

Which  of  these  two  theories,  then,  is  right  ?  Is  it  possible  that  the 
people  of  this  country  have  been  under  a  delusion  concerning  their 
own  form  of  government  all  these  years  ?  However  much  we  may 
dislike  to  have  our  cherished  traditions  and  beliefs  shattered,  if  we 
examine  the  matter  with  unprejudiced  minds  we  shall  find  that 
President  Taft,  Senator  Lodge,  and  all  the  others  are  quite  right. 
More  than  that,  the  Constitution  was  not  only  designed  to  protect  a 
certain  minority,  but  to  give  that  minority  controlling  power  in  Gov- 
ernment—State and  National. 

Within  the  last  few  years  there  has  arisen  a  group  of  scholars  who 
are  telling  the  truth  about  the  inner  import  of  the  Constitution. 
Among  them  none  ranks  higher  or  has  done  more  telling  service  in 
the  cause  of  the  people  than  Dr.  J.  Allen  Smith,  of  Washington  Uni- 
versity. His  great  book,  "The  Spirit  of  American  Government/' 
has  been  a  revelation  to  thousands  of  thinking  men,  because  it  sets 
forth  clearly  what  really  happened  at  the  constitutional  convention 
of  1787— and  what  is  the  real  reason  why  our  State  governments  are 


NEW    DANGEKS    TO    MAJOKITY    RULE.  5 

so  unresponsive  to  the  will  of  the  people.     Concerning  the  underlying 
motive  of  the  men  who  framed  the  Federal  Constitution  he  says : 

They  recognized  very  clearly  that  there  was  a  distinct  line  of  cleavage  separating 
the  rich  from  the  poor.  They  believed  with  Hamilton  that  in  this  respect  "all  com- 
munities tend  to  divide  themselves  into  the  few  and  the  many,"  that  the  latter  will 
tend  to  combine  for  the  purpose  of  obtaining  control  of  the  Government,  and,  having 
secured  it,  will  pass  laws  for  their  own  advantage.  This,  they  believed,  was  the 
chief  danger  of  democracy — a  danger  so  real  and  imminent  that  it  behooved  the  few 
to  organize  and  to  bring  about,  if  possible,  such  changes  in  the  Government  as  would 
protect  the  minority  of  the  opulent  against  the  majority.  This  was  the  purpose  of 
the  system  of  checks  by  which  they  sought  to  give  the  former  a  veto  on  the  acts  of 
the  latter. 

In  an  illuminating  chapter  on  the  '  'Checks  and  balances  of  the  Con- 
stitution" Dr.  Smith  discusses  the  complex  system  of  restrictions  by 
means  of  which  the  propertied  minority  was  to  control  the  numerical 
majority.  Among  these  of  direct  import  to  this  discussion  we  may 
.note: 

1 .  Amendment  was  made  practically  impossible  by  requiring  a 
two-thirds  majority  of  each  House  to  propose  and  a  three-fourths 
majority  of  the  States  to  adopt  any  change.     "One-twentieth  part  of 
the  people  could  prevent  the  removal  of  the  most  grievous  oppression 
by  refusing  to  accede  to  amendments." 

2.  The  judiciary  was  made  irresponsible  to  the  people,  and  the 
wray  opened  for  it  to  exercise  enormous  powers,  by  "interpretation" 
ana  veto  of  statutes. 

3.  The  President  and  Senate,  by  a  process  of  indirect  election, 
were  made  as  little  responsible  to  the  people  as  possible,  and  then 
given   the    preponderating    power  in    the   Government — this    as   a 
direct  check  upon  the  lower  house,  which  was  expected  to  be  radical. 
That  is,  the  minority  could  control  all  legislation  "initiated"  by  the 
people's  direct  representatives. 

4.  No  adequate  system  of  publicity  of  the  doings  of  Congress  and 
the  Government  was  provided  for,  and  the  people  w^ere  to  be  kept  in 
ignorance. 

The  unpleasant  truth,  then,  is  that  the  people  had  the  name  and 
form  of  popular  government,  which  theoretically  allowed  them  to 
rule,  but  the  instrument  was  so  cunningly  devised  that  practically  it 
was  impossible  for  a  majority  to  actually  carry  its  will  into 'effect. 
The  Constitution  wras,  as  has  been  aptly  said  by  a  distinguished 
writer,  "A  coup  d'  etat  of  the  propertied  classes."  It  has  more  than 
fulfilled  the  expectations  of  its  creators.  Says  Prof.  Smith: 

The  so-called  evils  of  democracy  are  very  largely  the  natural  results  of  those  con- 
stitutional checks  on  popular  rule  which  we  have  inherited  from  the  political  system 
of  the  eighteenth  century.  It  would  do  much  to  advance  the  cause  of  popular  gov- 
ernment by  bringing  us  to  a  realization  of  that  fact. 

The  propertied  classes  then  constituted  that  sacred  minority  which 
the  guaranties  of  the  Constitution  were  designed  to  protect.  And 
to-day  it  is  the  servants  of  and  apologists  for  the  propertied  classes 
of  our  own  time,  in  State  arid  college  and  editorial  sanctum,  which 
defend  these  guaranties.  In  the  old  time  they  denied  suffrage  to  the 
veterans  of  the  Revolutionary  War  unless  they  owned  property. 
The  very  men  who  made  America  possible  were  denied  a  voice  in  its 
Government.  In  our  time  the  propertied  classes  have  fought  the 
Australian  ballot,  the  direct  primary,  the  corrupt-practices  acts,  the 
direct  election  of  Senators,  the  presidential  primary,  but  especially 


6  NEW  DAN  GEES  TO  MAJORITY  RULE. 

is  their  wrath  aroused  over  the  proposal  for  the  initiative  on  consti- 
tutional amendments  and  the  recall  of  judges.  Their  supremacy 
in  the  commercial  and  political  world  lies  in  their  control  of  the  mak- 
ing and  interpreting  of  constitutions*  They  know  that  with  these 
powers  in  the  people's  hands,  beyond  the  reach  of  seduction  and 
bribery,  the  way  is  clear  for  the  rule  of  the  numerical  majority. 
This  is  the  secret  of  their  opposition. 

I  have  called  your  attention  to  this  phase  of  our  national  history  to 
emphasize  the  truth  that  all  is  not  democracy  that  goes  by  that  name; 
that  theory  is  one  thing  and  practice  another;  that  the  govern- 
mental machinery  by  which  the  rule  of  the  people  is  to  be  secured  is 
of  equal  importance  with  the  principles  of  republican  government. 
The  lesson  is  of  importance  to  us  because  democracy  is  in  identically 
the  same  danger  to  day  from  abortive  forms  that  it  was  in  the 
eighteenth  century. 

The  same  influences  in  government  which  secured  the  insertion  of 
"checks  and  balances"  in  the  Constitution,  State  as  well  as  National— 
for  we  must  not  forget  that  the  State  governments  were  modeled  on 
the  National— now  propose  to  prevent  the  rule  of  the  majority  by 
means  of  " safeguards  and  restrictions"  placed  upon  these  new  tools 
'of  democracy — the  initiative  and  referendum.  They  are  succeeding 
well,  and  if  we  are  not  careful  the  people  will  be  as  helpless  under 
this  system  as  under  the  uncontrolled  representative  system.  Already 
14  States  have  direct  legislation  in  some  form,  and  in  7  of  these  it  is 
of  little  or  no  practical  value. 

It  is  to  the  practical  results  of  these  " safeguards  and  restrictions" 
to  which  I  wish  to  direct  your  attention,  since  they  constitute  the 
new  danger  to  democracy. 

THE  CONSTITUTIONAL  INITIATIVE. 

Whenever  a  constitutional  amendment  providing  for  the  initiative 
and  referendum  is  under  consideration  in  a  State  legislature  the 
one  thing  most  bitterly  contested  by  the  corporation  politicians  is  the 
right  of  the  people  to  propose  amendments  to  the  Constitution  by 
initiative  petition  and  adopt  them  at  the  polls.  The  motive  is  per- 
fectly clear.  The  privileged  classes — that  is  the  "minority"  for 
which  President  Taft  is  so  solicitous — are  secure  in  their  privileges 
so  long  as  they  are  protected  by  constitutional  barriers.  Statute 
law  can  not  touch  them.  Let  the  people  try  to  regulate  railroad 
rates,  establish  equitable  taxation,  protect  labor,  curb  the  power 
of  corporations,  and  quickly  they  find  themselves,  in  popular  par- 
lance, "up  against"  the  Constitution.  If  such  laws  are  passed  they 
are  quickly  attacked  as  "unconstitutional,"  and  the  Supreme  Court 
becomes  the  real  legislature.  In  New  York  it  is  unconstitutional  for 
the  State  to  establish  a  nine-hour  work  clay  for  women  in  certain 
employments.  In  Kansas  it  is  unconstitutional  for  the  State  to  own 
and  operate  oil  wells.  And  so  on  ad  infinitum.  But  the  people  can 
not  vote  upon  a  change  in  the  Constitution  unless  permitted  to  do  so 
by  the  legislature.  In  many  States  this  requires  a  two- thirds  vote; 
that  is,  a  minority  can  prevent  a  change;  the  progress  of  the  people 
is  checked.  And  if  we  examine  the  methods  of  submitting  amend- 
ments we  shall  find  them  as  a  rule  made  very  difficult. 


NEW    DANGERS    TO    MAJORITY    RULE. 


But  under  the  "initiative"  the  people  could  secure  desired  changes 
within  a  short  time.  No  power  rf  money  or  politicians  could  stop 
them.  Therefore,  the  objection  to  the  constitutional  initiative. 

Hence,  when  you  read  that  some  State  has  triumphantly  secured 
the  rule  of  the  people  by  adoption  of  the  initiative  and  referendum, 
remember  to  inquire  if  the  constitutional  initiative  is  included.  If  it 
is  not,  that  State  is  not  free,  and  the  most  essential  thing  to  demo- 
cratic government  has  been  omitted. 

AN  IMPOSSIBLE  MAJORITY. 

The  next  most  important  ''safeguard7'  demanded  by  the  reaction- 
aries and  dangerous  to  popular  government  is  to  require  an  impossible 
popular  majority  for  the  adoption  of  initiated  measures  or  the  rejec- 
tion of  acts  of  the  legislature  under  the  referendum.  Let  me  illus- 
trate this  point  by  concrete  examples. 

Initiative  and  referendum  measures  are  usually  voted  upon  at  gen- 
eral elections.  A  space  at  the  bottom  of  the  ballot  is  reserved  for 
measures,  and  candidates  are  voted  upon  above. 

In  Oklahoma  it  is  provided  that  all  measures  submitted  by  the 
legislature  or  by  initiative  petition,  to  be  adopted,  must  receive  a 
favorable  majority  of  all  votes  ' '  cast  in  said  election."  Since  the  adop- 
tion of  the  constitution  in  1907  five  important  measures  which  received 
majorities  of  from  27,994  to  58,503  of  the  voters  casting  votes  on 
these  measures  were  lost  because  they  did  not  get  the  required  major- 
ity of  all  the  votes  cast  for  candidates.  Not  a  single  measure  has  been 
passed  under  this  requirement  at  a  general  election,  and  in  Oklahoma 
the  initiative  is  recognized  to  be  practically  a  dead  letter. 

Let  us  see  what  this  thing  means.  I  have  here  a  table  of  these 
votings. 

Popular  vote  on  measures  submitted  in  Oklahoma  election,  1908. 
[L.  Submitted  by  the  legislature.    I.  By  initiative  petition.    R.  By  referendum  petition.) 


Yes. 

No. 

Majority 
approving. 

Majority 
rejecting. 

Ter  cent 
voting. 

Agency  system  (L.)               

105,  392 

121,573 

16,  181 

88 

114  394 

83  888 

30,50G 

77 

190  359 

71  933 

48  419 

74 

Model  capital  city  (  1>  ) 

117!441 

75,  792 

41,649 

75 

Sale  of  school  lands  (I.) 

96,  745 

110,840 

14,095 

80 

Total  vote,  257,240. 

Popular  vote  on  measures  submitted  in  Oklahoma  election,  1910. 


Yes. 

No. 

Majority 
approving. 

Majority 
rejecting. 

Per  cent 
vflting. 

101  636 

43,  133 

58,503 

57 

Amendment  permitting  railroads  to  consolidate 

83,  169 

55,  175 

27,994 

54 

Bill  establishing  model  capital  city  (L  ) 

84,336 

118,899 

34,  533 

80 

88  808 

117,  736 

39,880 

85 

105,041 

126,118 

20,077 

91 

Election  law  (R  ) 

80,  146 

106,  459 

26,313 

70 

Total  vote,  254,730. 

8  NEW    DANGERS    TO    MAJORITY    RULE. 

By  this  table  we  find  that  an  average  of  75  per  cent  of  the  citizens 
vote  on  measures  submitted  to  them.  It  varies  from  54  to  91,  the 
average  is  75  per  cent.  That  is  to  say,  the  will  of  a  majority  of  the 
active,  intelligent  voters  concerned  for  the  public  welfare  was  defeated 
by  the  25  per  cent  of  careless,  ignorant,  or  indifferent  voters  who  failed 
to  vote  upon  them  at  all.  But  in  this  same  election,  as  everywhere 
in  America,  every  candidate  was  elected  to  office  if  he  received,  not  a 
majority,  but  a  plurality  of  the  vote  cast,  upon  the  office  for  which  he 
was  running. 

Contrast  Oklahoma  with  Oregon.  In  Oregon  measures  submitted 
to  the  people  are  enacted  or  rejected  by  a  majority  of  the  votes  '  'cast 
thereon."  Since  the  adoption  of  the  initiative  and  referendum  in 
1902,  29  measures  have  been  approved  by  the  people,  20  of  which 
would  have  been  lost  had  the  Oklahoma  provision  been  in  effect. 
Among  them  we  note  the  local  option  law  favored  by  the  temperance 
forces,  the  home-rule  amendment  for  cities  favored  by  the  liquor 
interests,  the  recall  of  public  officials,  the  presidential  primary,  the 
corrupt-practices  act,  the  municipal  and  county  initiative  and  refer- 
endum, the  people's  control  of  constitutional  conventions,  the 
judiciary  reform  bill  and  three-fourths  jury  verdict,  the  employers' 
liability  bill,  the  good-roads  amendment,  the  new  insane  asylum, 
and  so  on. 

In  short,  a  large  proportion  of  the  reforms  by  which  Oregon  has 
routed  the  political  bosses  and  achieved  fame  as  a  State  governed  by 
its  people  would  have  been  lost  had  this  little  "joker"  requiring  a 
majority  of  all  votes  cast  been  allowed  to  go  into  the  direct  legislation 
provision,  instead  of  a  majority  of  all  votes  cast  thereon.  The 
tremendous  progress  made  against  the  terrific  opposition  of  the 
railroads,  the  corporations,  and  political  machines  would  have  been 
blocked,  not  by  intelligent  opposition,  but  by  a  "safeguard" — the 
effect  of  which  is  to  virtually  have  counted  against  progressive 
measures  the  ignorant  and  careless  who  do  not  care  a  button  about 
good  government. 

Because  these  important  measures  did  not  receive  an  absolute 
majority  of  all  the  votes  cast  for  candidates,  or  of  all  the  voters  in  the 
State,  the  eminent  gentlemen  we  have  quoted  heretofore  and  others 
throughout  the  country  are  warning  against  the  grave  danger  of 
''minority  rule." 

Let  us  pause  here  to  inquire  what  class  of  voters  do  not  vote  upon 
measures.  In  the  election  of  1908,  in  the  notorious  "Silver  Moon" 
precinct  in  Cincinnati,  there  were  cast  496  votes  for  President  and 
17  on  the  taxation  amendment.  In  "Bucktown"  (colored)  there 
were  308  votes  for  Taft  and  Bryan  and  1  vote  on  the  taxation  amend- 
ment. Judge  Thomas  McBricle,  of  the  Oregon  Supreme  Court,  tells 
me  that  once  he  examined  every  ballot  cast  in  Multnomah  County, 
in  which  Portland  is  situated,  to  determine  a  disputed  election. 
Being  interested  in  this  very  question,  he  took  note  and  found  the 
lightest  vote  cast  on  measures  was  in  the  slum  wards  and  foreign  sec- 
tions of  the  city.  This  is  the  testimony  of  similar  observers  through- 
out the  country.  On  the  liquor  question  alone  it  does  not  apply. 

The  irresistible  conclusion  is  that  the  75  per  cent  of  voters  who,  in 
the  average  of  cases  decide  issues,  constitute  the  intelligent,  active 
citizenship  of  the  State;  the  men  who  do  things.  They  do  things 
the  bosses  and  "propertied  minority"  and  Senator  Lodge  do  not 


NEW    DANGERS    TO    MAJORITY    RULE.  9 

want  done — the  election  of  United  States  Senators  by  a  vote  of  the 
people,  for  example.  The  testimony  shows  that  the  25  per  cent 
who  do  not  vote  on  measures  are  the  ignorant,  indifferent  voters. 
And  yet  the  very-  men  who  object  most  strenuously  to  the  initiative 
and  referendum  in  the  hands  of  the  people  because  of  their  alleged 
ignorance  and  instability  demand  that  the  most  ignorant  and  most 
indifferent  be  given  influence  in  the  decision  of  questions  in  which 
they  are  not  interested  enough  to  cast  a  ballot  upon. 

MINORITY  RULE. 

When  Senator  Lodge  makes  that  as  an  argument  against  the  rule 
of  the  people  by  the  initiative  and  referendum  I  should  think  the 
words  would  burn  his  tongue.  For  a  generation  a  majority  of  90 
men  in  the  Oregon  State  Legislature  throttled  progress  in  that  State, 
and  its  corruption  was  a  stench  in  the  nostrils  of  the  Nation.  In 
1910  an  average  of  88,742  free,  uncorrupted  citizens  cast  their  ballots 
upon  the  measures  submitted.  Is  a  majority  of  £K)  men  greater, 
wiser,  safer,  more  honest  than  a  majority  of  88,000  men?  Is  a 
majority  of  any  State  legislature  in  this  country  safer  than  a  majority 
of  even  half  tHe  voters  of  that  State  ? 

No,  the  American  people  are  not  prepared  to  be  frightened  at  this 
talk  of  " minority  rule"  when  public  issues  are  settled  in  an  open  field 
and  a  fair  fight  with  every  citizen  given  opportunity  to  express  his 
will.  But  there  is  another  kind  of  minority  rule  they  do  fear  and 
which  they  propose  to  end.  Why  does  not  Senator'Lodge  decry  that 
sort  of  minority  rule  by  which  one  political  boss  controls  a  city  council 
and  barters  away  franchises  worth  millions  of  dollars?  By  which 
half  a  dozen  corporation  lawyers  control  a  State  legislature  and  one  or 
two  gigantic  combinations  of  capital  control  the  Congress  of  the 
United  States  ?  Let  him  answer  that  and  we  will  have  more  confidence 
in  the  sincerity  of  his  opposition  to  direct  legislation  and  his  fears  of 
minority  rule. 

First  fix  your  constitution  favorable  to  the  propertied  minority  and 
then  make  it  difficult  or  impossible  to  amend  is  the  demand  of  the  con- 
servatives. Eleven  States  have  tried  out  the  " majority  of  all  votes 
cast  in  the  election"  safeguard.  What  have  been  the  results  ?  Prof. 
Dodd.  in  his  able  work  on  "The  Revision  and  Amendment  of  State 
Constitutions/'  tells  us  that  it  "has  made  constitutional  revision 
practically  impossible,."  No  amendment  has  been  adopted  in  Indiana 
since  1881,  nor  in  Nebraska  since  1881,  nor  in  Ohio  since  1851,  by  this 
system.  Out  of  15  questions  submitted  to  the  people  of  Illinois  from 
1896  to  1910  only  4  received  a  majority  of  all  votes  cast;  and  amend- 
ments of  vast  importance  which  received  majorities  thereon  of  over 
300  000  were  lost. 

This  "safeguard"  of  a  majority  of  all  votes  cast  is  the  most  deadly 
"joker"  that  can  be  inserted  in  any  amendment.  All  the  patriotism, 
education,  and  effort  under  Heaven  can  not  arouse  that  class  of  apa- 
thetic voters  who  are  by  this  system  without  their  knowledge  placed 
as  a  barrier  in  the  way  of  progress.  Curiously  enough  it  bears  a  strik- 
ing resemblance  to  that  "check"  in  the  Constitution  which  permits 
one-third  of  the  Members  of  Congress  to  prevent  the  submission  of  an 
amendment,  since  in  this  case  one-third  of  the  vote  cast  on  a  measure, 
if  cast  against,  will  defeat  it.  And  again  the  25  per  cent  who  do  not 


10  NEW    DANGERS    TO    MAJORITY    RULE. 

vote  parallel  the  one-fourth  of  the  States  which  can  defeat  the  adoption 
of  an  amendment  when  submitted. 

A  man  who  does  not  exercise  his  right  to  vote  upon  a  question  should 
not  be  permitted  to  influence  the  decision  one  way  or  another. 
Abraham  Lincoln,  in  his  opinion  on  the  admission  of  West  Virginia, 
stated  the  case  most  clearly,  and  his  argument  is  unanswerable.  He 
said: 

It  is  a  universal  practice  in  the  popular  elections  in  all  these  States  to  give  no  legal 
consideration  whatever  to  those  who  do  not  choose  to  vote,  as  against  the  effect  of  the 
votes  of  those  who  do  choose  to  vote.  Hence  it  is  not  the  qualified  voters,  but  the 
qualified  voters  who  choose  to  vote,  that  constitute  the  political  power  of  the  State. 

PETITIONS. 

Under  the  system  established  by  the  founders  of  our  National 
Government  we  have  seen  that  a  minority  of  one-fourth  of  the 
States  could  defeat  any  constitutional  amendment.  For  statute 
laws  passed  by  a  majority  of  the  two  houses  of  Congress  there  was  a 
veto  provided  for  the  President,  and  the  two- thirds  majority  required 
to  pass  a  measure  over  his  veto  or  to  impeach  him,  thus  giving  the 
one-third  minority  power  to  block  progressive  legislation.  And 
after  that  came  the  Supreme  Court  with  power  to  veto  by  the  word 
" unconstitutional"  or  to  destroy  by  interpretation.  The  Standard 

011  case,  of  recent  date,  is  a  shining  example.     All  these  barriers 
correspond,  in  the  representative  system,  to  the  "  majority  of  all 
votes  cast"  under  a  direct  legislation  system. 

The  next  thing  of  importance  to  the  fathers  was  to  make  the  initia- 
tion or  start  of  any  measure  as  difficult  as  possible.  This  was  ac- 
complished by  requiring  a  two-thirds  vote  in  each  House  and  approval 
of  the  President  necessary  to  submit  an  amendment  to  the  Constitu- 
tion, a  rule  adopted  in  most  States.  In  actual  practice  it  has  proven 
very  effective  and  practically  prohibitive  on  the  most  vital  issues. 

Under  direct  legislation,  the  power  of  initiative  is  taken  from  the 
legislature  and  placed  in  the  people.  The  people  can  start  things 
going  by  popular  petitions.  The  obvious  thing  then,  for  the  con- 
servative, is  to  make  it  just  as  expensive,  difficult,  and  burdensome 
to  secure  these  petitions  as  possible.  The  people  will  speedily  become 
discouraged  if  this  is  done,  and  the  power  of  the  initiative  minimized. 
Hence  it  is  argued  that  petitions  must  be  large.  They  must  be  dis- 
tributed widely  over  the  State;  they  can  not  be  freely  circulated,  but 
the  voters  must  go  to  the  courthouse  to  sign  them;  and  so  on.  It  is 
assumed  that  these  petitions  will  be  signed  as  easily  as  those  of  the 
old  style  begging  sort,  and  that  unless  the  petition  is  "  carefully  safe- 
guarded" the  ballot  will  be  flooded  with  crank  proposals  and  the 
State  be  put  to  enormous  expense  for  their  submission. 

It  is  one  of  those  rare  instances  in  which  a  political  boss  becomes 
suddenly  solicitous  for  public  economy.  We  must  remember  that 
strict  requirements  are  made  in  every  State  where  the  initiative  and 
referendum  are  in  operation,  that  every  sheet  of  signatures  must  be 
sworn  to  before  a  notary,  and  that  the  solicitor  believes  every  signer 
to  be  a  voter.  Also  that  whole  petition  must  be  checked  carefully  by 
the  State  officials  and  compared  with  the  registration  books,  and 
thousands  of  signatures  are  thrown  out  because  they  are  illegible  or 
technically  imperfect. 


NEW    DANGERS    TO    MAJOHITY    RULE.  11 

An  8  per  cent  petition  in  Oregon  requires  about  8,500  actual  verified 
signatures  and,  unless  promoted  by  a  powerful  organization,  costs 
$1,500,  in  addition  to  the  volunteer  work.  But  a  10  per  cent  unveri- 
fied petition  in  Illinois,  asking  for  an  advisory  vote  on  three  popular 
propositions,  filed  in  1910,  required  115,500  signatures  and  cost 
nearly  $10,000.  To  get  this  petition  under  Oregon  conditions  would 
have  cost  $20,000.  The  notary  seals  alone  would  have  cost  over 
$2,500.  I  pause  here  to  say  that  in  Illinois  it  is  ninety  times  as  easy 
to  put  a  candidate  for  a  State  office  in  the  running  as  it  is  to  put  a 
popular  law  in  the  running  for  a  mere  advisory  vote ;  that  is,  to  ask 
the  legislature  to  enact  it. 

If  an  expression  of  the  public  will  is  a  desirable  thing,  and  if  the 
people  are  to  be  encouraged  and  not  discouraged  in  civic  activities,  a 
petition  should  require  only  sufficient  signers  or  "  seconds  "  to  warrant 
taking  a  vote.  The  petition  decides  nothing;  it  is  merely  a  "  motion " 
similar  to  that  employed  in  parliamentary  bodies  to  get  a  question  be- 
fore the  house  for  discussion  and  decision.  It  should  be  large  enough 
to  prevent  trivial  or  unimportant  questions  being  submitted,  but  not 
so  large  as  to  go  beyond  the  reach  of  that  body  of  patriotic  citizens, 
interested  in  good  government,  with  little  organization,  of  small 
means,  and  no  ax  to  grind  or  selfish  interest  to  promote.  No  possible 
petition  within  reason  can  bar  out  the  railway  companies,  the  corpora- 
tions, the  brewery  interests,  or  the  .well-oiganizeci  temperance  forces 
with  the  churches  at  their  command.  To  require  high  petitions 
simply  places  the  use  of  the  initiative  and  referendum  in  the  hands 
of  the  wealthy  classes  who  can  afford  to  hire  solicitors  in  large  num- 
bers. 

Next  to  a  large  petition  the  most  effective  " safeguard"  to  hamper 
its  effectiveness  is  to  require  its  distribution.  This  forces  the  pro- 
moters of  a  petition  to  get,  as  in  Montana,  the  required  per  cent  in 
each  of  two-fifths  of  the  counties  of  the  State.  Hence  they  must 
leave  the  populous  centers  and  go  to  the  agricultural  sections,  where 
the  people  are  widely  scattered  anel  the  cost  and  trouble  is  enormously 
increased.  This  "joker"  effectually  prevented  the  success  of  several 
petitions  circulated  in  Montana  between  1906  and  1911.  It  has  been 
adopted  in  Nebraska  and  in  Ohio  in  modified  forms,  and  unless  it  is 
excluded  from  amendments  will  become  one  of  the  most  successful 
methods  of  blocking  progress. 

The  right  of  petition  has  cost  humanity  a  long  struggle.  It  is 
embedded  in  all  American  constitutions,  and  no  one  would  dare  to 
question  it.  So  long  as  it  is  a  mere  request  it  does  not  trouble  the 
corporations.  But  when  it  is  proposed  to  give  legal  force  to  a  peti- 
tion and  make  it  impossible  that  it  be  ignored;  to  give  the  people  the 
power  to  decide  upon  its  worth  and  clothe  it  with  the  authority  of  con- 
stitutional or  statute  law,  it  is  quite  another  matter;  it  is  fought  to 
the  death,  and  when  no  longer  able  to  withstand  the  movement  for 
its  elevation  to  dignity  and  power,  the  politicians  seek  to  deprive  it  of 
its  effectiveness  by  so-called  " safeguards  and  restrictions" — for  fear 
perchance  that  the  people  might  be  overburdened. 

THE  " EMERGENCY  CLAUSE." 

The  " interests"  justly  regard  the  initiative,  especially  the  initiative 
on  constitutional  amendments,  as  the  most  dangerous  to  their  control 
of  government.  Their  greatest  concern  is  to  maintain  the  status 


12  NEW    DANGERS    TO    MAJORITY    RULE. 

quo  and  they  know  this  can  not  be  done  with  the  initiative  in  the 
hands  of  an  intelligent  and  patriotic  people  who  are  determined  to 
place  the  rights  of  humanity  above  the  rights  c  -  a  few  millionaires 
to  make  money.  It  is  the  call  of  the  twentieth  century  and  con- 
stitutions must  make  way. 

But  it  is  also  highly  desirable  now  and  then  for  the  politicians  and 
corporations  to  pass  new  laws  favorable  to  their  interests,  to  secure 
some  franchise,  or  alter  some  existing  law.  Therefore  it  becomes 
necessary  to  destroy  the  referendum  by  indirection  since  with  an 
effective  referendum  in  hand  the  voters  can  veto  their  proposals. 
Let  us  examine  the  ways  in  which  this  can  be  done  and  has  been  done. 

First,  it  can  be  provided  that  all  laws  passed  by  the  legislature  on 
certain  subjects  shall  be  exempt  from  the  referendum.  Secondly,  it 
may  be  provided  that  when  a  referendum  petition  is  filed  against  a 
law,  the  law  shall  not  thereby  be  withheld  from  going  into  operation, 
but  shall  continue  effective  until  a  vote  is  taken  and  it  is  repealed  by 
the  people.  This  will  allow  the  law  to  operate  for  over  one  year 
usually,  and  in  case  of  a  transfer  of  valuable  public  property,  or 
granting  a  franchise,  the  repeal  would  come  too  late.  Thirdly,  since 
the  usual  amendment  forbids  laws  passed  by  the  legislature  to  go 
into  operation  for  90  days  after  passage  in  order  to  give  opportunity 
for  referendum  petitions  to  be  filed,  an  " emergency  clause"  is  pro- 
vided which  allows  a  law  to  go  into  instant  operation  when  the 
legislature  declares  such  law  is  "necessary  for  the  immediate  preser- 
vation of  the  public  peace,  health,  or  safety."  If  the  "emergency 
clause"  simply  permits  quick  operation  but  keeps  the  measure  still 
subject  to  a  vote  of  the  people  later,  well  and  good.  But  if  it  is  so 
drawn  that  an  "emergency  measure"  is  exempted  from  the  operation 
of  the  referendum,  and  that  by  a  majority  vote,  the  real  power  of  the 
referendum  is  lost  and  the  people  are  powerless  against  the  legisla- 
ture. Six  States  have  this  sort  of  a  referendum  clause  in  their  con- 
stitutions. In  South  D'akota  40  per  cent  of  the  laws  are  passed  as 
"emergency  laws."  This,  then,  is  the  way  to  have  the  referendum 
and  not  have  it. 

THE  ARBITRARY  LIMIT. 

Still  another  "restriction"  which  we  are  likely  to  hear  much  of  in 
the  future  is  to  set  a  definite  limit  to  the  number  of  questions  which 
may  be  submitted  at  any  one  election — say,  5  or  10.  Then,  when- 
ever important  progressive  measures  are  likely  to  be  initiated  by  the 
people,  the  legislature  may  exclude  them  from  the  ballot  by  hastily 
submitting  the  required  number  of  constitutional  amendments  or 
laws.  Or,  if  the  number  is  limited  to  measures  submitted  by  petition, 
the  interests  may  fill  the  ballot  with  measures  of  their  own — and  post- 
pone action  on  the  popular  proposals. 

It  is.  not  well  that  too  many  questions  be  voted  on  at  the  same 
election,  but  the  difficulty  lies  in  what  limit  shall  be  set,  and  who  is  to 
•determine  what  measures  are  to  be  submitted  if  the  limit  is  exceeded. 
There  is  little  danger,  however,  from  a  multiplicity  of  measures.  The 
people  have  a  greater  capacity  for  discrimination  than  they  are  given 
credit  for — especially  when  proper  publicity  is  provided  for;  and 
further,  when  legislatures  do  their  duty,  there  will  be  little  need  for 
the  employment  of  the  initiative  and  referendum.  If  they  do  not, 
the  free  action  of  the  people  to  obtain  needed  relief  should  not  be 
limited  by  any  arbitrary  provision. 


NEW    DANGEES    TO    MAJOKITY    RULE.  13 

PUBLICITY. 

But  if  in  the  struggle  to  secure  popular  government  we  have 
excluded  the  "  restrictions  and  safeguards,"  so  called,  and  an  initia- 
tive and  referendum  amendment  which  gives  the  people  the  substance 
of  power,  not  merely  its  form,  there  is  one  thing  still  necessary  to  insure 
the  full  benefits  of  the  new  system.  There  must  be  proper  publicity. 
The  people  must  be  fully  informed  on  the  issues  they  are  to  decide  at 
the  ballot  box.  This  is  quite  as  necessary  to  guarantee  a  full  vote  on 
the  measures  as  it  is  to  educate  the  citizens  as  to  the  worth  of  these 
measures. 

It  will  not  do  to  leave  this  matter  to  the  newspapers  and  political 
orators,  because  the  very  interests  which  oppose  direct  legislation 
very  largely  control  the  press  and  opinion-forming  agencies,  and  if 
the  people  are  misinformed  confusion  and  uncertainty  will  result. 
Nor  will  it  suffice  to  publish  the  proposed  measures  in  newspapers, 
being  but  $47,610.61  from  1904  to  1910,  inclusive,  during  which  time 
64  measures  were  .submitted.  The  Arkansas  Legislature  of  1911 
unfortunately  adopted  the  newspaper  advertising  system,  and  this 
year  it  is  reported  that  Secretary  of  State  Hodges  estimates  the 
publishing  of  the  measures  will  cost  the  State  in  the  neighborhood 
of  $100,000.  This  is  probably  exaggerated.  But  much  better  pub- 
licity at  a  fraction  of  this  cost  could  have  been  secured  by  the  pam- 
phlet system.  In  Colorado  the  legislature,  against  the  wishes  of  the 
friends  of  direct  legislation,  provided  for  newspaper  advertising  in 
the  amendment  itself  when  submitted  to  the  people.  This  year  the 
legislature,  in  order  to  insure  a  vast  expense  and  disgust  the  people 
with  the  initiative  and  referendum,  submitted  seven  long  measures. 
Ten  important  measures  were  initiated  by  the  Direct  Legislation 
League  and  several  by  other  organizations.  The  cost  to  the  State 
will  be  enormous.  This  will  be  used  as  an  argument  against  the 
principles  of  direct  legislation.  But  the  league  has  initiated  an 
amendment  to  the  amendment,  providing  for  the  Oregon  pamphlet 
system,  and  this  will  be  the  last  occasion  for  such  expense  if  it  is 
adopted  by  the  people. 

So  we  see  the  same  instinct  which  led  the  founders  of  the  Con- 
stitution to  provide  no  adequate  means  of  informing  the  people  of 
the  transactions  of  the  Federal  Congress  now  leads  the  politicians 
to  oppose  an  effective  means  of  educating  the  voters  on  submitted 
measures.  Every  State  legislature  with  the  exception  of  Oregon, 
and  recently  South  Dakota,  has  refused  to  adopt  a  modern  system 
of  publicity.  Public  intelligence  is  a  dangerous  thing  for  men  who 
want  to  operate  in  the  dark. 

The  problem  of  successful  popular  government  is  to  get  the  will  of 
the  people  carried  into  effect  promptly.  Beyond  question  the  "  checks 
and  balances"  of  the  present  representative  system  have  been  respon- 
sible for  many  of  the  evils  from  which  we  suffer  to-day.  It  is  impos- 
sible to  get  satisfactory  representation  with  machinery  so  complex  and 
cumbersome;  hence  arises  the  apathy  of  the  public  mind.  After  so 
many  failures  to  adjust  things,  only  to  be  defeated  in  the  end,  men 
exclaim,  "What's  the  use?" 

It  is  not  likely  that  the  best  uncontrolled  representative  system 
that  could  be  devised  would  meet  the  needs  of  to-day.  So  far- 
reaching  and  all-powerful  is  the  influence  of  concentrated  capital  that 


14  NEW    DANGERS    TO    MAJORITY    RULE. 

the  power  of  the  whole  people  directly  and  finally  expressed  is  alone 
sufficient  to  cope  with  the  situation. 

The  rise  of  modern  commercialism  in  the  middle  of  the  last  century 
put  a  tremendous  strain  upon  modern  governments.  The  advent  of 
the  railroad,  steam,  electricity,  the  factory  system,  and  the  centrali- 
zation of  capital  brought  private  interests  to  the  doors  of  the  state- 
house  seeking  and  securing  privileges,  legal  rights,  and  protection 
which  militated  against  the  common  welfare. 

In  the  Republic  of  Switzerland  the  danger  to  liberty  and  to  the 
existence  of  democratic  government  from  this  source  was  early  per- 
ceived. With  characteristic  promptness  and  thoroughness  the  Swiss 
people  went  directly  to  the  root  of  the  problem  and  deprived  their 
representatives  of  the  power  to  deliver  them  into  the  bondage  of  the 
few.  They  did  this  before  the  railroads,  the  banks,  and  the  great 
stock  companies,  which  correspond  to  our  corporations,  had  secured 
control  of  their  Government.  It  was  in  1869  that  the  first  modern 
initiative  and  referendum  system  was  established  in  the  Canton  of 
Zurich.  Within  a  very  few  years  all  the  Cantons  of  Switzerland  had 
followed  suit.  In  1874  the  referendum,  on  petition  of  30,000  voters, 
was  made  applicable  to  Federal  laws.  In  1891  the  constitutional  ini- 
tiative was  applied  to  national  measures.  Having  the  machinery  of 
government  wherewith  to  exert  their  power,  the  people  of  Switzerland 
have  ruled.  The  "  opulent  minority  "  have  not  dominated  the  numer- 
ical majority.  Capital  has  been  subordinated  to  human  welfare. 
Political  corruption  is  practically  unknown.  It  is  an  honor  to  serve 
the  public.  And  however  much  critical  investigators  may  find  fault 
with  particular  statutes  which  have  been  adopted  or  rejected  by  the 
Swiss  people,  it  remains  true  that  the  Swiss  Government  represents  a 
majority  of  the  Swiss  people  and  that  to-day  it  is  the  best  governed 
and  most  democratic  country  in  the  world. 

In  the  United  States  we  have  let  commercialism  have  full  sway. 
We  are  endeavoring  to  regulate  a  power  which  has  become  stronger 
than  the  Government  itself,  by  means  of  the  political  machinery  of 
the  eighteenth  century.  There  is  but  one  method  by  which  at  this 
late  day  the  power  of  the  people  in  government  can  be  restored  and 
the  Republic  saved  from  becoming  a  financial  oligarchy.  That  is 
through  direct  action  of  the  whole  citizenship.  The  channel  for  that 
direct  action  is  the  initiative  and  referendum.  A  majority  of  the 
people  see  that  the  old  channels  are  not  sufficient.  The  new  ones  are 
being  constructed.  The  problem  is,  Shall  they  be  made  strong  and 
clear  and  permit  a  constant,  authoritative  and  final  expression  of  the 
will  of  the  majority,  or  shall  they  be  so  restricted  and  hampered  that 
the  twentieth  century  will  repeat  the  history  of  the  nineteenth  cen- 
tury and  democracy  fail  because  of  undemocratic  political  machinery  ? 


Makers 

Syracuse,  N.  Y. 
PAT.  JAM.  21,1908 


w 


424432 


YC  08590 


U.C.BERKELEY  LIBRARIES 


